Citation Nr: 0326814
Decision Date: 10/08/03 Archive Date: 10/20/03
DOCKET NO. 02-08 529 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Veteran represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
L. J. Driever, Counsel
INTRODUCTION
The veteran had active service from October 1966 to July
1968. His claim comes before the Board of Veterans' Appeals
(Board) on appeal from a December 2000 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Chicago, Illinois. The veteran perfected an appeal of that
decision.
REMAND
The veteran seeks entitlement to service connection for PTSD.
Additional development is necessary before the Board can
decide this claim.
As an initial matter the Board notes that in a June 2000
notice the RO informed the veteran of the evidence required
to substantiate his claim for service connection for PTSD,
and the relative responsibilities of the veteran and VA in
developing that evidence. In that notice, however, the RO
informed the veteran that he had 30 days to submit the
requested evidence.
In a decision promulgated on September 22, 2003, Paralyzed
Veterans of America v. Secretary of Veterans Affairs, No. 02-
7007, -7008, -7009, -7010 (Fed. Cir. Sept. 22, 2003), the
United States Court of Appeals for the Federal Circuit
invalidated the 30-day response period contained in 38 C.F.R.
§ 3.159(b)(1) as inconsistent with 38 U.S.C.A. § 5103(b)(1).
The Court made a conclusion similar to the one reached in
Disabled American Veterans v. Secretary of Veterans Affairs,
327 F.3d 1339, 1348 (Fed. Cir. 2003) (reviewing a related
Board regulation, 38 C.F.R. § 19.9). The court found that
the 30-day period provided in § 3.159(b)(1) to respond to a
VCAA notice is misleading and detrimental to claimants whose
claims are prematurely denied short of the statutory one-year
period provided for response. Therefore, since this case is
being remanded for additional development, the RO must take
this opportunity to inform the veteran that notwithstanding
the information previously provided, a full year is allowed
to respond to a VCAA notice.
The medical evidence of record establishes that the veteran
has PTSD, and that the PTSD is secondary to multiple alleged
stressors that he experienced in service. The RO has not,
however, attempted to obtain corroborating evidence that the
claimed stressors actually occurred.
Subsequent to the certification of his appeal, the veteran
submitted to the Board an April 2003 statement from an
individual with whom he purportedly served in Vietnam. In
that statement the individual corroborated the veteran's
assertion of having been exposed to smalls arms fire shortly
after they arrived in Vietnam. The RO should obtain
verification from the service department that the signatory
of the statement was, in fact, in Vietnam at the same time as
the veteran.
The veteran's service personnel records show that he served
in Vietnam from February to July 1968, with a military
occupational specialty (MOS) of clerk-typist. While there he
was primarily assigned to the 509th Quarter Master Detachment
(Mess). He did not receive any medals, badges or citations
typically awarded for combat activity or valor, nor did he
participate in any campaigns.
He alleges that he experienced the following stressors while
serving in Vietnam:
(1) On either February 18th, 19th or 20th, 1968, the first or
second night after arrival in Bien Hoa, Vietnam, at 9:30 p.m.
or 10:00 p.m., he was exposed to small arms fire;
(2) On his second or third day in Qui Nhon, there was a
rocket and mortar attack;
(3) In February 1968, he was assigned to permanent perimeter
guard duty at night on Marble Mountain;
(4) He saw photographs of his dead captain, S. J. Cygon,
after he was shot in the head during a raid;
(5) In March 1968, while he was sitting in a bunker, a
sniper shot was fired between his head and that of a fellow
serviceman;
(6) In April 1968, while on guard duty, he heard women and
babies screaming when Marines shot at their homes;
(7) He had to march to and from his post on Marble Mountain,
which was located in a dangerous area;
(8) In May 1968, he worked guarding prisoners and witnessed
prisoners being slapped;
(9) He was ordered to sit in a chair on top of a shower
house, 50 yards from the nearest bunker;
(10) During the first three weeks of May 1968, he had to
remain in the trenches all night;
(11) In June 1968, he witnessed a jet hit the ground after
it had been shot down;
(12) In June 1968, he saw a mortar or grenade go off on the
opposite side of the wall from which he was sitting.
In light of the foregoing, this case is REMANDED to the RO
for the following development:
1. The RO must review the claims file
and ensure that all notification and
development action required by
38 U.S.C.A. §§ 5103 and 5103A (West 2002)
is completed. See also Paralyzed
Veterans of America v. Secretary of
Veterans Affairs, No. 02-7007, -7008, -
7009, -7010 (Fed. Cir. Sept. 22, 2003);
38 C.F.R. § 3.159 (2002).
2. The RO should, through appropriate
channels, attempt to obtain verification
of the veteran's claimed stressors, as
described above.
3. The RO should, through appropriate
channels, request verification of the
signatory to the April 2003 statement
having been in Vietnam at the same time
as the veteran.
4. If the RO finds that any of the
alleged stressors are verified, the
veteran should be afforded a VA
psychiatric examination. The claims file
and a copy of this remand should be made
available to and be reviewed by the
examiner in conjunction with the
examination, and its receipt and review
should be acknowledged in the examination
report. The examination should include
any diagnostic tests or studies that are
deemed necessary for an accurate
assessment, and the examiner should
review the results of any testing prior
to completion of the report.
The examiner should conduct an
examination and provide a diagnosis for
any pathology found. Based on review of
the evidence of record and sound medical
principles, the examiner should also
provide an opinion on whether it is at
least as likely as not that the veteran's
PTSD, to the extent it is present, is
related to the verified stressor. The RO
should advise the examiner that he/she
may not rely on any unverified stressor
in determining whether the veteran's in-
service experiences were of sufficient
severity to support a diagnosis of PTSD.
The examiner should provide the rationale
for his/her opinion.
5. After undertaking any additional
development deemed appropriate in
addition to that requested above, the RO
should re-adjudicate the issue on appeal.
If any benefit sought on appeal remains
denied, the veteran and his
representative should be furnished a
supplemental statement of the case and be
given the opportunity to respond.
The case should then be returned to the Board, if in order.
The Board intimates no opinion as to the ultimate outcome of
this case. The veteran has the right to submit additional
evidence and argument on the matter the Board has remanded to
the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999).
The law requires that this claim be afforded the RO's
expeditious treatment. See The Veterans' Benefits
Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108
Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002)
(Historical and Statutory Notes) (providing that all claims
that are remanded by the Board or by the United States Court
of Appeals for Veterans Claims for additional development or
other appropriate action must be handled expeditiously); see
also VBA's Adjudication Procedure Manual, M21-1, Part IV,
paras. 8.44-8.45 and 38.02-38.03 (directing the ROs to
provide expeditious handling of all cases that have been
remanded by the Board and the Court).
_________________________________________
N. W. FABIAN
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).